JUDICIARY IN CRISIS
Anomalies in Western Cape High Court nominee Daniel Thulare’s career timeline questioned
Questions have been raised about anomalies in the dates of Western Cape High Court nominee advocate Daniel Thulare’s professional trajectory in the judiciary.
Thulare, who has been recommended for a post on the Western Cape High Court Bench, was appointed as a magistrate in Johannesburg in 2000 when it appears he was only in possession of a junior BJuris degree.
South African law requires appointed magistrates to be in possession of an LLB degree.
After obtaining an LLB, candidate attorneys must serve articles for between 12 months and two years.
There are circumstances when a candidate attorney can embark on articles prior to obtaining an LLB (see box). A three-year term is recommended with a B-Juris degree.
Thulare said he began his articles in 1999, the year he was appointed as an acting magistrate “on probation”. The year he was appointed permanently, 2000, was the year he stated he registered for his LLB with Unisa.
With a BJuris, an individual can only work as a State prosecutor.
Thulare’s CV to the Judicial Service Commission (JSC), which was questioned by Deputy Chief Justice Raymond Zondo during his interview on 8 October, stated that he had served as an articled clerk from 1996 to 1999 with a Nigel firm, Du Preez & Nkosi Incorporated.
Thulare said this had been an error, and that he had, in fact, worked as a prosecutor during that period — in 1998.
He told Zondo that he had become a public prosecutor, “then I went to serve articles”.
If Thulare served his three-year articles with his B-Juris and prior to embarking on his LLB it would have taken him through to 2001.
Zondo noted that Thulare had first been a court interpreter between 1991 and 1996, to which Thulare replied that he had decided to do his articles after this stint, which would take him through to 2001 — if he completed the five-year article requirement prior to obtaining an LLB.
Thulare listed his three degrees as a BJuris, a Bachelor of Laws (LLB) and a Master of Laws (LLM), all from Unisa. He told Zondo he had obtained his LLB in 1998.
Prior to his permanent appointment as a magistrate in 2000, Thulare had worked as an acting magistrate (in 1999, after obtaining his LLB, according to his account to Zondo). Before that he was a State prosecutor with three years as a district court prosecutor under his belt.
While Thulare said he worked during the day and studied at night, his achievements in such a short space of time were “remarkable”, Zondo offered.
To which Thulare responded, “Thank you.”
But it is the anomalies and confusion around the dates that have raised questions.
During a May 2021 interview, Thulare told Chief Justice Mogoeng Mogoeng that he was “busy with my LLD [Doctor of Laws]”. He added that he had registered his proposal with Unisa in 2019, but had since registered as an LLD student at UWC “in the course of 2020”.
He had done so, he said, as he had spent eight terms acting on the Western Cape High Court Bench.
Key judgments by Thulare have been S v Madhinha, Mong v Director of Public Prosecutions, Hans v District Court Magistrate, Cape Town 2020, City of Cape Town v Balus, 17 March 2020, Khumalo v Minister of Police and Another, 29 July 2020.
Thulare, in his May interview, explained how he had set his sights on law after having worked as a “Grade 1” labourer for South African Breweries.
“When you see a brewery truck standing at the entrance to a bottle store and you see a guy with a trolley. That is where I come from. It is, amongst others, that labour caused me to reflect.
“I am born to a domestic worker and a gardener. I was a trolley pusher. Is that the line and the legacy that I want to leave for my family? And that is what caused me to persevere.”
He said he had never attended university full-time.
“I registered with Unisa. I did both my BJuris, LLB and LLM while working during the day while studying at night. I do not know the benefit of sitting with a professor in a lecture room. That has helped me a lot,” he told commissioners.
Thulare and magistrate James Lekhuleni, who have been recommended for two positions in the Western Cape High Court, have both served as acting judges in the high court.
During one interview Thulare accepted mild chastisement for his reserved judgments, saying he would do better in future.
Daily Maverick has received confirmation that the latest list published shows seven reserved judgments attributed to Thulare. The list, which is usually published on Thursdays, appears to have been held back until after Thulare’s interview on Friday, 8 October.
Thulare has worked as a judicial officer for 21 years He was appointed chief magistrate in 2016 and in this position was responsible for the appointment of South Africa’s chief magistrates.
In 1998, then-justice minister Dullah Omar snipped the LLB programme from five to four years to make it more accessible to previously disadvantaged students.
Some law experts at the time criticised the move, saying it would lead to students focusing on the standard elements of law and they would not have time to do subjects that would provide wider legal experience and insight.
However, other academics, including Professor Rob Midgley, dean of the Faculty of Law at Rhodes, said the four-year LLB did not short-change students. Pressures for students, such as Thulare, one would assume, were eased by completing studies sooner, argued Midgley.
In 2007, Judge Bernard Ngoepe, then Judge President of the Transvaal, opined that he had never found the explanation for the four-year as opposed to five-year degree convincing.
“Previously disadvantaged people, if given the opportunity and resources, would achieve like everyone else. They do not need to be patronised in such a manner. As I once said, if I could obtain the old post-graduate LLB degree through private studies at Unisa in the mid-seventies while working, any determined person can obtain that degree as well,” he said.
The serving of articles, which had been reduced to 12 months from two years, was also to blame, said Ngoepe. He said that in the past a BJuris, which is a four-year degree, would demand serving articles for three years.
“Today, with a junior four-year degree such as BProc [which was phased out], graduates do not even serve articles for a full two years.”
Ngoepe considered the LLB “a glorified BProc”.
An LLB degree, according to the University of Pretoria, is the shortest and most focused route and specifically geared towards qualifying for entry into the organised legal profession.
“This degree emphasises both the theoretical and practical application of the law and prepares students for the challenges of the legal profession.”
To specialise in certain fields of the law, LLB graduates may pursue an LLM and subsequently an LLD.
Thulare told Mogoeng that he had signed up for an LLM, but had given up his studies to start a family.
He said he was currently “busy with my LLD”.
Thulare completed his term as president of the Judicial Officers Association of South Africa in 2019.
At an address given at his departure, he rattled cages with his criticism of the concentration of power in the Office of the Chief Justice (OCJ), which he said was “paternalistic” and dismissive of the magistracy.
He has called for a symposium on the notion of “a single judiciary”.
According to Judges Matter, the concern with regard to the OCJ was that it was “essentially a quasi government department”, established to take on the administrative functions of the judiciary.
“Judicial independence is not just a matter of judges making decisions without fear, favour or prejudice. Judicial independence includes security of tenure, financial security and institutional independence, including control of the day-to-day operations of courts.”
These operations had been handed to the OCJ as a separate department to the Department of Justice.
“However, only the matters relating to the High Court, SCA and Constitutional Court have been handed over to the OCJ — while the magistracy remains stuck in the Department of Justice,” according to Judges Matter.
Thulare acted at the Gauteng Division of the High Court in 2014 and 2016.
His LinkedIn profile states he attended Resebone Primary, SJ Ramuthloa Middle and Utsane High School in North West. Under the heading “dates attended or expected graduation”, Thulare has stated “1976-1987”.
He is the author of a book on indigenous churches as well as “the Ecclesiastical leader of an indigenous apostolic Christian church”.
Daily Maverick has sent questions to Minister of Justice spokesperson Chrispin Phiri and we await a response
We also sent questions to JSC spokesperson, advocate Dali Mofu, who responded that the JSC was “not aware of any anomalies and neither had these been pointed out.
“Should a complaint be laid then the JSC will naturally process and investigate it in terms of the applicable legislation and rules,” he said. DM
A candidate attorney may enter into articles for five years if they are still studying towards a Bachelor of Laws degree.
The absolute entry requirement is a Matric Certificate with an exemption endorsement or bachelor’s pass and/or a certificate of complete exemption.
It is mandatory for the document to reflect an endorsement certifying that “The candidate has complied with/met the minimum requirements for admission to bachelor’s degree study at a University in the Republic of South Africa.’
Three years if they already have a primary degree, ie, a B.Com, BA, BJuris, B.Social Sciences degree.
Two years if they are in possession of either LLB degree or B.Proc degree (obtained on or before 31 December 2004) and one year — if candidates have either LLB or B.Proc degrees and in addition thereto have completed the full-time six months’ Practical Legal Training course offered by the Law Society of South Africa, alternatively the one-year long distance training course offered by Unisa. DM
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